Pubdate: Sat, 03 Mar 2018
Source: Globe and Mail (Canada)
Copyright: 2018 The Globe and Mail Company
Author: Joel Kranc
Page: B11


What will you do if your employee returns from lunch smelling of
marijuana? That's one of several issues companies may have to deal
with once the federal government legalizes the use of cannabis later
this year.

What is it about legalized marijuana that differs - or not - from
other substances, such as alcohol, which are already prohibited from
use at work?

A survey by the Human Resources Professional Association released in
January found that 71 per cent of HR professionals believe their
workplaces are not prepared to deal with the coming legalization of
recreational marijuana, including issues related to impairment, usage
on the premises and safety.

Daryl Cukierman, partner with Blake, Cassels & Graydon, notes that
criminalization - something employers use as a reason for prohibiting
marijuana in the workplace - will no longer be an appropriate objection.

"The legality argument will no longer be valid once the legislation
comes into force, and when it comes time to determining disciplinary
action regarding cannabis-related misbehaviour, employers will need to
think about the appropriate form of discipline even more so," he explains.

And it is the proportionality of the discipline that will be difficult
for employers to deal with initially. "Discharge may still be an
appropriate response in certain situations but, much like other
instances of workplace misconduct, the facts surrounding the marijuana
use or possession will need to be assessed by the employer on a
case-by-case basis," Mr. Cukierman says.

How will employers deal with the differences between types of

Currently, it is not okay for employees to show up to work drunk and
the same, of course, is true of them showing up high. "With
recreational use and termination - the tribunals, the arbitrators, the
courts will look at it and say: 'How do we manage this relative to
workplace policies?' And there will be more of those [cases] because
employees that are disciplined or terminated will complain," says
Lorenzo Lisi, practice group leader, labour and employment group, with
Aird & Berlis.

He says that legalization does not undermine an employer's ability to
make rules or policies that prohibit use on company property. The
issue, Mr. Lisi adds, is whether impairment can be demonstrated in the
same ways as someone who is under the influence of alcohol.

This remains a serious debate for employers as drug impairment can be
more difficult to ascertain and tests have not reached the levels of
accuracy that occur with alcohol testing.

Employers have to consider any loopholes that may exist in their
current drug and alcohol policies. If, as Mr. Cukierman suggests,
employees make an argument that marijuana is no longer illegal,
companies will want to review and update current policies relating to
possession and use of alcohol and drugs at work to ensure that
marijuana remains a prohibited substance.

Another issue has to do with general practice or company culture. Mr.
Lisi says there are companies that allow executives or others to have
a drink at lunch during work hours. Does this imply vaping at lunch
(even on an employee's own time) would be allowed as well? "It means,"
he says, "that companies may have to be smarter about how they treat
any drug or alcohol, not just cannabis."

Ultimately, Mr. Lisi concludes, employers' policies going forward have
to be consistent in their approach to alcohol and drugs on company
property. The key in the future will be a no-exceptions policy with
consistent enforcement leaving little room for loopholes or employee
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MAP posted-by: Matt